The New Military Commissions Act: “It is a dangerous moment for all of us”

Revolution recently talked with Bill Goodman, the legal director for the Center for Constitutional Rights, who is supervising the caseload for attorneys at CCR—including those representing hundreds of detainees at the U.S. government's Guantanamo Bay prison camp. The views expressed by those we interview are, of course, their own, and they are not responsible for the views expressed elsewhere in Revolution and on our website.

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Revolution: Can you talk about the significance of the Military Commissions Act, just passed by Congress? Does this mean that the President, just on his say-so, can declare anyone beyond the scope of legal rights, lock them up, and deny them what people have understood to be a trial for hundreds of years?

Bill Goodman: There are a number of things about this new law that are very significant.

The President, under this new legislation, cannot simply declare someone an ‘‘enemy combatant ‘‘on his say-so’’—although it comes very close to that. He can have somebody declared an enemy combatant through what’s called a CSRT (Combatant Status Review Tribunal)—which is a creature which is sui generis to [unique to] the Guantanamo situation so far.

Or he can impanel tribunals that are the equivalent of CSRTs anywhere in the world, including within the U.S. as I read the statute, and declare anybody or everybody an “enemy combatant.” And of course, the law applies to people not only who have been declared “enemy combatants” but who are “awaiting such determination” as to whether they are an “enemy combatant”—which is an interesting phrase as well.

So it comes close to that, but there is a little bit of process built into the statute. And if someday we are forced to live with the statute—which I hope we won’t because I believe the statute to be unconstitutional—we may have to be relying on these little scraps of process that are left to us.

But it does mean, I think, that on a sweeping basis, and for the first time in hundreds of years, at a grand level really, the basic protection of democratic rights—the core and heart of what is freedom from oppression, which is of course the core and the heart of democracy itself—has been tremendously weakened—and to certain people it has been totally eliminated, and that’s the writ of habeas corpus.

So this is a shameful moment for the U.S. Congress.

And it means from a practical point of view that anyone, anyone in the world, can be declared an “enemy combatant.” And that is true of American citizens as well.

Now people who are non-citizens then (once declared this) can be held indefinitely, without any process whatsoever, without trial, without any further hearing other than what have been, so far have been, kangaroo court proceedings in front of these CSRTs.

It is a dangerous moment for all of us.

Revolution: The new Military Commissions Act specifically denies “alien unlawful enemy combatants” the right to habeas corpus. Could you explain to us who this affects, where things are headed, and what happens to rights that people have taken for granted if this is not reversed?

Bill Goodman: First of all, the term habeas corpus is an ancient term. It’s obviously Latin and is a common law term that goes back to the Middle Ages and really before the Middle Ages. And it means that no one, including the king (back in those days), including the president (in this day) can hold somebody without a good reason to do so. A small judge, a magistrate, has the power to say to the king that “you can’t hold this person any more unless you prove to me you’ve got a good reason to be holding them, that you have evidence to prove that they are guilty of something. And without that you have to release that person.’’

And that is a fundamental right.

As I said the other night, without it we are all slaves within a police state because it is so basic.

And as I just said a few moments ago, this ability to hold people without giving them a right to any process at all applies to any non-citizen of the United States who had been declared an “enemy combatant” or who is awaiting a determination as to whether they are an “enemy combatant.” And those people now can be held without recourse to a court and without really any rights whatsoever, I think. That’s what it means.

Revolution: And for as long as the government wants to.

Bill Goodman: Yes. Indefinitely! My clients at Guantanamo have, many of them, been there five years and could be held there until they die. And most of them are young men.

Revolution: You and the attorneys working with you at CCR have been representing prisoners at Guantanamo Bay. And you recently said that such lawyers could themselves now be targeted by the White House as “enemy combatants.” Once it becomes legal to strip the rights from one group, how does this target then get widened to new groups?

Bill Goodman: The definition of enemy combatant [in the new Military Commissions Act] is incredibly broad—and it could include all sorts of lawful activity. And one example is providing legal ‘‘support.’’ Another example is providing ‘‘support’’ by way of protest or political agitation.

These are things that are protected by the First Amendment among other provisions in the Bill of Rights. And so this language is so broad that it could be argued and used against people who try to help, in the ways we at the Center for Constitutional Rights and hundreds of other lawyers have tried to do in an attempt to uphold the Constitution really.

But certainly, seen from the perspective of a narrow-minded, reactionary, careless, thoughtless bureaucrat, or government official with too much power and too few brains, that could include large portions of the population which would otherwise be acting within their constitutional rights.

So far, the consequence doesn’t mean much if a person, like me and the lawyers I work with, is a U.S. citizen. At that point, the statute does not specifically authorize the government to suspend the writ of habeas corpus for those people who are U.S. citizens. But it allows them to declare these people ‘‘enemy combatants.’’

I think it is very chilling, and of great concern to many of us, that the government can now declare anyone, whether they be a citizen or not, an ‘‘unlawful enemy combatant.’’ And who knows what the future consequences of that might be. It is of concern for that reason.

Revolution: What connection do you see between the legalization of torture in this new Act, and the stripping away of basic rights of imprisonment, trials, evidence, and habeas corpus?

Bill Goodman: There is a clear historical connection. Originally, back in the Middle Ages, anyone who was detained at all was automatically tortured. This goes back to the Romans. And it is an old and familiar practice, an unfortunate practice in western society, in western civilization. So that the ability to challenge the king and say he has to bring someone forward and tell us what evidence he has against them, and if you don’t you have to release them—this is tied into the movement against the use of torture as a method. And so it fits in that way to start with.

I think that the other aspect of it is the bill not only strips courts of jurisdiction to hear petitions for habeas corpus, it strips those courts of jurisdiction to hear any claim that arises out of this kind of detention and then those claims for damages against torture. They have no rights whatsoever.

So notwithstanding the fact that you can’t do these things to people, those people and their families and people concerned about them can do nothing to protect them. You have to rely upon the ‘‘good will’’ of guess who—George W. Bush and Dick Cheney. And that ‘‘good will’’ and fifty cents—somewhere!—could get you a cup of coffee.